News from the Alliance of Business Immigration Lawyers Vol. 11, No. 3B • March 15, 2015
Headlines:
1. USCIS Will Accept H-1B Petitions for FY 2016 Beginning April 1, 2015 -USCIS expects to receive more petitions than the H-1B cap during the first five business days of this year’s program.
2. USCIS Temporarily Suspends Adjudication of H-2B Petitions Following Court Order -USCIS has temporarily suspended adjudication of Form I-129 H-2B petitions for temporary nonagricultural workers while the government considers the appropriate response to a court order. Also due to the order, the Department of Labor is no longer accepting or processing requests for prevailing wage determinations or applications for temporary labor certifications in the H-2B program. DOL is considering its options.
3. China EB-3 Visa Category Retrogresses Nearly 10 Months -Continued heavy demand by applicants with very early priority dates has required a retrogression of the cut-off date for the for the China EB-3 visa category for the month of April, to January 1, 2011.
4. China EB-5 Visa Category to Retrogress by June; Two-Year Backlog Expected -The State Department predicts that it will establish a retrogression of the cut-off date for the China EB-5 category by June. The retrogression could create about a two-year backlog.
5. New Publications and Items of Interest -New Publications and Items of Interest
6. ABIL Member/Firm News -ABIL Member/Firm News
7. Government Agency Links -Government Agency Links
Details:
1. USCIS Will Accept H-1B Petitions for FY 2016 Beginning April 1, 2015
On April 1, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2016 cap. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.
The congressionally mandated cap on H-1B visas for FY 2016 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.
USCIS expects to receive more petitions than the H-1B cap during the first five business days of this year’s program. The agency will monitor the number of petitions received and notify the public when the H-1B cap has been met. If USCIS receives an excess of petitions during the first five business days, the agency will use a lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed. USCIS used the lottery for the FY 2015 program last April.
Premium processing for cap-subject petitions. H-1B petitioners may still continue to request premium processing together with their H-1B petition. However, USCIS has temporarily adjusted its current premium processing practice based on historic premium processing receipt levels and the possibility that the H-1B cap will be met in the first five business days of the filing season. To prioritize data entry for cap-subject H-1B petitions, USCIS will begin premium processing for H-1B cap-subject petitions requesting premium processing by May 11, 2015.
Filing. USCIS reminds H-1B petitioners that when the temporary employment or training will be in different locations, the state where the company or organization’s primary office is located will determine the appropriate Service Center to which petitioners should send the Form I-129 package, regardless of where in the United States the various worksites are located. When temporary employment or training will be in different locations, the address on page 1, Part 1 of Form I-129 is for the organization’s primary office. When listing a “home office” as a work site location on Part 5, question 3, USCIS will consider this a separate and distinct work site location.
Cases will be considered accepted on the date USCIS “takes possession of a properly filed petition with the correct fee.”
The Alliance of Business Immigration Lawyers (ABIL) recommends filing during the first five business days in April. Contact your ABIL member for help with H-1B applications.
USCIS has released an optional checklist for I-129 H-1B filings.
USCIS encourages H-1B applicants to subscribe to the H-1B Cap Season email updates at http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2016-cap-season.
2. USCIS Temporarily Suspends Adjudication of H-2B Petitions Following Court Order
As of March 5, 2015, U.S. Citizenship and Immigration Services (USCIS) has temporarily suspended adjudication of Form I-129 H-2B petitions for temporary nonagricultural workers while the government considers the appropriate response to a court order entered March 4, 2015, in Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015).
USCIS noted that due to this decision, as of March 4, the Department of Labor (DOL) is no longer accepting or processing requests for prevailing wage determinations or applications for temporary labor certifications in the H-2B program. DOL is considering its options in light of the court’s decision.
Because H-2B petitions require temporary labor certifications issued by DOL, USCIS has temporarily suspended adjudication of H-2B petitions. USCIS will continue adjudicating H-2B petitions for nonagricultural temporary workers on Guam if the petitions are accompanied by temporary labor certifications issued by the Guam Department of Labor.
As of March 6, 2015, USCIS has also suspended premium processing for all H-2B petitions until further notice. If a petitioner has already filed H-2B petitions using the premium processing service and the agency did not act on the case within the 15-calendar-day period, USCIS will issue a refund.
DOL has released frequently asked questions (FAQs) regarding its implementation of the decision in Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Perez, 774 F.3d 173, 191 (3d Cir. 2014). Following the court’s decision, DOL ceased issuing prevailing wage determinations in the H-2B program based on employer-provided wage surveys and can no longer issue H-2B temporary employment certifications based on employer-provided wage surveys.
USCIS’s NOTICE ON PEREZ v. PEREZ
DOL’s NOTICES ON PEREZ v. PEREZ and COMITE DE APOYO a los TRABAJADORES AGRIGOLAS (CATA) v. PEREZ
3. China EB-3 Visa Category Retrogresses Nearly 10 Months
The Department of State’s Visa Bulletin for April 2015 notes that continued heavy demand by applicants with very early priority dates has required a retrogression of the cut-off date for the China EB-3 visa category for the month of April, to January 1, 2011, to hold number use within the annual numerical limit. The Visa Office advanced the China EB-3 visa category very rapidly during the past seven months, in an attempt to generate demand to ensure that all numbers under the annual limit could be made available.
Potential forward movement of this cut-off date during the remainder of the fiscal year will depend on the demand received for applicants with very early priority dates.
4. China EB-5 Visa Category to Retrogress by June; Two-Year Backlog Expected
The Department of State’s Visa Bulletin for April 2015 notes that continued heavy demand by EB-5 immigrant investor applicants will require a retrogression of the cut-off date for the China EB-5 visa category by June 2015 to hold number use within the annual numerical limit. Informed sources predict that the initial retrogression is expected to be about two years.
5. New Publications and Items of Interest
New supplemental guide for E-Verify employer agents. On March 8, 2015, USCIS published the new Supplemental Guide for E-Verify Employer Agents. The new guide replaces the previous E-Verify User Manual for E-Verify Employer Agents and the E-Verify Quick Reference Guide for E-Verify Employer Agents. E-Verify employer agents should now use the E-Verify User Manual and the new supplemental guide. These changes do not affect the information that E-Verify employer agents should provide to their clients. E-Verify employer agents should continue to provide their clients with the user manual and the E-Verify Quick Reference Guide for Clients of E-Verify Employer Agents.
The latest edition of the Global Business Immigration Practice Guide has been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
The latest edition adds a chapter on Singapore. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.
Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”
Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”
Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”
This comprehensive guide is designed for:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
This publication provides:
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
The list price is $299, but discounts are available. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis Website.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available at http://www.abilblog.com/.
6. ABIL Member/Firm News
The Alliance of Business Immigration Lawyers (ABIL) was ranked as Band 1 in the category of “immigration (legal networks)” in the 2015 Chambers Global directory. ABIL’s listing is HERE. FOR MORE INFORMATION ON THE DIRECTORY
Several ABIL members will speak at IIUSA’s 8th annual EB-5 Regional Economic Development Advocacy Conference in Washington, DC, on April 12-14, 2015:
- Angelo Paparelli and Stephen Yale-Loehr will speak on USCIS Policies: Latest Adjudication & Processing Trends for EB-5 Petitions/Applications.
- Bernard Wolfsdorf will speak on Visa Retrogression in 2015: Latest Demand Data, Practical Insights & What Comes Next.
FOR MORE INFORMATION OR TO REGISTER
Several ABIL members spoke at an Invest in America summit in Shanghai, China, on March 14 and 15, 2015. H. Ronald Klasko and Mr. Wolfsdorf spoke on visa retrogression in the EB-5 category. Mr. Yale-Loehr moderated a panel on due diligence issues in the EB-5 program.
Several ABIL members will speak at an Invest in America Summit in Shenzhen, China, on March 18 and in Beijing on March 21, 2015. Mr. Klasko will speak on EB-5 “hot topics” in Shenzhen and due diligence issues in the EB-5 program in Beijing. Mr. Wolfsdorf will speak on due diligence issues in the EB-5 program in Shenzhen and on EB-5 “hot topics” in Beijing. Mr. Yale-Loehr will speak on targeted employment area issues in the EB-5 program in Shenzhen and on EB-5 visa retrogression issues in Beijing.
Klasko Immigration Law Partners will hold its 11th annual Spring Seminar, “Immigration 2015: Hope Springs Eternal,” on Wednesday, April 22, 2015, from 9:30 am to 2 pm. FOR MORE INFORMATION OR TO REGISTER
Sharon Mehlman and Cyrus Mehta presented at the American Immigration Lawyers Association’s Midwest Regional Conference in Chicago on March 9, 2015. Ms. Mehlman spoke on “Update on DOL and ICE Compliance and Audit Issues.” Mr. Mehta spoke on “Alternatives to the H-1B.”
Robert F. Loughran spoke on February 23, 2015, at the “Welcoming City Forum” on “Implications of President Barack Obama’s Executive Action.” The presentation, held in Austin, Texas, was for both employers and employees. This forum was intended to formalize the city of Austin’s commitment to being a welcoming, immigrant-friendly community and identify resources to address this goal. FOR MORE ON AUSTIN’S WELCOMING CITY INITIATIVE
Mr. Mehta has authored a new blog entry. “Every Country Except The Philippines: New Developments In Opt Out Provision In The Child Status Protection Act”
Mr. Yale-Loehr wrote a blog entry summarizing a recent USCIS conference call on EB-5 source of funds issues.
Mr. Yale-Loehr was quoted in Law360.com on March 3, 2015, in “3 Tips To Avoid Screwing Up Your H-1B Application.” Among other things, he noted that with the heavy demand for H-1B visas, it is best to submit an LCA for DOL certification in mid-March at the latest.
Mr. Yale-Loehr was quoted in Politifact.com on March 5, 2015, in “Federal Judge Called Obama Immigration Action ‘Unconstitutional’.” He noted that “[a]ny party can raise an alleged constitutional violation. Only when the Supreme Court rules on the executive action’s constitutionality will that issue be resolved once and for all.”
Mr. Yale-Loehr was quoted in the Atlanta Journal-Constitution on March 5, 2015, in “Congressman Collins Accuses Obama of Course Change on Immigration.” Noting that deferred action doesn’t change the law, he said, “Most legal scholars believe that these executive actions fall within the limits; they do not exceed them.”
Mr. Yale-Loehr was quoted by the Associated Press in an article about venue shopping in immigration cases. The article was picked up by many newspapers, including SFGate on March 8, 2015. In “Immigration Ruling Shows Lawyers Playing Venue Shopping Odds,” he said, “Everybody does this to the extent they can.”
7. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin